LIQUIDATION SERVICES AGREEMENT
EXHIBIT
10.2
This Liquidation Services Agreement
(this “Agreement”) between WENDY’S/ARBY’S GROUP, INC., a Delaware corporation
(the “Company”), and TRIAN FUND MANAGEMENT, L.P., a Delaware limited partnership
(“Trian”), is entered into as of the 10th day of June, 2009.
In
consideration of the mutual covenants contained herein, the parties hereto
hereby agree as follows:
a. source
and identify opportunities to sell, liquidate or otherwise dispose of the Legacy
Assets;
b. negotiate
on the Company’s behalf (subject to final approval by the Company) the terms and
conditions of any such sale, liquidation or other disposition of any or all of
the Legacy Assets in order to maximize the proceeds thereof to the
Company;
c. advise
and consult with management of the Company regarding the sale, liquidation or
other disposition of the Legacy Assets; and
d. provide
such other services in connection with the sale, liquidation or other
disposition of the Legacy Assets as management of the Company shall reasonably
request from time to time.
(b) Notwithstanding
the terms of any indemnification agreement between the Company and those persons
who will be providing services to the Company under this Agreement (each an
“Indemnification Agreement”), each such Indemnification Agreement shall continue
in full force and effect with respect to the services provided hereunder subject
to thee exclusions set forth in clause (a) above. The indemnification
pursuant to the Indemnification Agreements shall not be deemed exclusive of any
other rights to which such persons may be entitled under the Company’s
Certificate of Incorporation or By-laws or under any other agreement, contract
of insurance, vote of stockholders or disinterested directors, or otherwise, or
of the broader power of the Company to indemnify an agent of the company as
authorized by Delaware law.
To the
Company at:
Wendy’s/Arby’s
Group, Inc.
0000
Xxxxxxxxx Xxxxxx Xxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxx 00000
Attn: General
Counsel
To Trian
at:
Trian
Fund Management, L.P.
000 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Chief
Legal Officer
11. Governing
Law. Notwithstanding the place where this Agreement may be executed
by either of the parties hereto, the parties expressly agree that all terms and
provisions hereof shall be governed by and construed in accordance with the
internal laws of the State of New York applicable to contracts made and wholly
performed, and to transactions wholly consummated, within that
State.
12. Arbitration. Any
dispute, controversy or claim arising out of or relating to this Agreement, or
the breach thereof, that the parties are not able to resolve after good faith
efforts over a period of 15 days shall be settled by a single arbitrator in an
arbitration conducted in the Borough of Manhattan, The City of New York, and
administered by the American Arbitration Association (the
“AAA”). Such arbitration shall be under the Commercial Arbitration
Rules of the AAA and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. Each party shall be
responsible for its own fees and costs associated with such
arbitration.
Agreed to
and accepted as of the 10th day of June, 2009.
WENDY’S/ARBY’S GROUP,
INC.
By: /s/ XXXX X.
XXXXXX
Name:
Xxxx X. Xxxxxx
Title:
SVP, General Counsel and Secretary
TRIAN FUND MANAGEMENT,
L.P.
By: Trian Fund Management GP,
LLC
its General Partner
By: /s/ XXXXXX X.
GARDEN
Name:
Xxxxxx X. Garden
Title:
Member
SCHEDULE
I
Carrying
Value
(in
000s)
|
||||
Investment Limited
Partnerships
|
||||
JP
Acquisition Fund IV, LP
|
$ | 409 | ||
Xxxxxxxxx
Partners V, LP - WAG
|
514 | |||
Xxxxxxxxx
Partners V, LP – Wendy’s
|
5,138 | |||
Total
investment limited partnerships
|
6,061 | |||
Other Investments
|
||||
Jurlique
International Pty. Ltd.
|
- | |||
Trumpet
Feeder Ltd.
|
4,470 | |||
Scientia
Group, Inc. (280 BT)
|
645 | |||
Total
other investments
|
5,115 | |||
DFR
Note Receivable, Long Term
|
25,431 | |||
Total
Legacy Assets
|
$ | 36,607 |